Tag Archives: US

A German court in Frankfurt (Beschl. v. 14.05.2012 – Az.: 5/28 Qs 15/12) has ruled that a request for mutual legal assistance from the United States regarding stripping assets belonging to Kim Dotcom, has no basis for legal action in Germany.

Kim Dotcom, the founder of the file-sharing MegaUpload site was arrested in Auckland, New Zealand in January of this year. He had been sought by the US authorities on copyright infringement charges relating to pirated content on his websites.

As a part of the criminal investigation against the file-sharing service Megaupload, certain assets were supposed to be removed. This request was issued by the American FBI when they called for legal assistance from the German authorities.

The Frankfurt judges have since rejected this request, because it contains insufficient evidence. The US legal team failed to demonstrate that a web hosting service for the illegal upload of copyrighted files, amounts to a criminal offence.

According to the German ‘Telemediengesetz’ (communications legislation), a hosting service for foreign files will generally not be accountable unless the host had active knowledge of illegal activity. The judges also emphasised that the concept of knowledge is limited to positive knowledge. Therefore if the service provider believes that it is possible or likely that a specific piece of information is stored on their server, this is not sufficient evidence of knowledge of abuse.

According to the court ruling, there is no legal obligation to monitor the transmitted data or stored information or to search for any illegal activity.

Since the US legal team did not mention any other circumstances that could constitute a criminal offence in their request for mutual legal assistance, the German court concluded that their request for the recovery of assets is unfounded.

The recent extradition case against Richard O’Dwyer, involving the breach of US copyright law, raises serious issues about the use of extradition agreements between states. The 23 year old student ran tvshack, a website hosting links to tv programmes and films which could be streamed online for free. By providing links to protected creative material, his website was allegedly in violation of US copyright law. Despite the indirect function of the site, the links can amount to secondary infringement which is a criminal offence under US law.

How do these US laws apply outside it’s own jurisdiction? The simple answer would be that they don’t.. Or that’s what we would assume. The crimes O’Dwyer is being sought for by the American authorities are not actually offences in the UK. However under an extradition agreement between the US and Britain he could be tried for crimes in US courts. The the Extradition Act passed by Labour post 9/11 in 2003, was primarily designed for extraditing terror suspects and appears quite unsuitable in relation to this case. Clearly Richard O’Dwyer is not being sought for terrorism offences, so how can this treaty be applied to someone who has merely violated US copyright law.

In the US O’Dwyer could face a maximum sentence of 10 years, while he would most likely only face a fine in the UK for equivalent copyright violations. Sir Menzies Campbell, who is currently leading a review of UK extradition arrangements, stated:

Sir Menzies Campbell is leading a review into extradition on behalf of the Lib Dems

“It seems anomalous to say the least that an action taking place in the United Kingdom which would not be regarded as criminal can justify extradition to the U.S.”

In January, District Judge Quentin Purdy said that he was satisfied the alleged conduct would constitute an offence under British law, and ruled that the extradition could go ahead. He stated that it was important that justice was not hindered by national borders, to ensure alleged victims of crime along with the public could maintain faith in the legal system. It seems to me that being extradited for copyright infringement on agreements created to deal with terrorism suspects, is a strong incentive for the public to lose their confidence in the judicial system. Why can O’Dwyer not go on trial in the UK if Judge Purdy believes his conduct would constitute an offence in Britain?

If there are such grave concerns relating to protection of intellectual property, why do they not create cross border agreements relating to intellectual property law allowing individuals to be tried in their home countries? It seems fundamentally wrong to use an agreement designed for an entirely different purpose to extradite a British citizen on much lesser offences. It appears that the British courts are dealing with American pressure to extradite O’Dwyer under the Extradition Agreement rather than addressing the nature and gravity of his case. Julia, Mr O’Dwyer’s mother, has been running a campaign to to fight his extradition and allow him to stand trial in the UK. In an interview with the World Socialist website, she criticised the UK’s willingness to extradite its own citizens without considering the alleged offences:

“With America, it is a whole different treaty and law. It’s very difficult to fight because you’re not addressing the alleged crime. You are fighting the extradition law. When you go through the extradition courts, they want you to go to America to prove your innocence. They don’t want to be looking at the allegations against you”

The O’Dwyer case draws worrying parallels with the case of Gary McKinnon, who has been fighting extradition to the US after hacking into the Pentagon website. The Asbergers sufferer claimed that he had hacked into the site in 2001 and 2002 in an attempt to find evidence relating to UFO’s. He has also been subject to the 2003 Extradition Agreement between the UK and US since it came into force in 2005 some years after he committed the relevant offences. If McKinnon is extradited and charged he could face up to 70 years in prison.

US President Barack Obama tried to distance himself from the issue of extradition when forced to answer a question about O’Dwyer’s case in a live digital questioning session in the White House. Thousands of web users had voted for it to be the top issue to be put to the president. Obama claimed that as a president he did not take a direct role in the case.

“I’m not personally doing anything, I want to make sure everybody understands… the president doesn’t get involved with prosecution decisions or extradition decisions and this has been a decision by the Justice Department”

While the US president may not be personally seeking O’Dwyer’s extradition, he did not criticise the case. Nor did he comment on the use of anti-terrorism legislation relating to the extradition agreement. In a stereotypical style of a politician he looked shifty and tried to move away from giving a clear answer.

The Extradition Agreement 2003 makes it much easier to extradite British citizens to the US than the other way round. The ratio of extradition currently stands at 5:2 in Americas favour. Mrs O’Dwyer has been very open in voicing her disappointment in the UK’s handling of the case, she told the Daily Mail:

“The UK government’s passive acceptance of disproportionate extradition is shameful, but well known.”

Extradition agreements should be reserved for serious crimes involving dangerous criminals. While the tvshack website may have been in violation of copyright laws in the US, extradition and custody measures seem to be a hugely disproportionate punishment for a young university student. The role of British courts in this case is hugely alarming and raises concerns regarding the protection of British citizens. The extradition process should not be welcomed by UK courts but rather enforced as a last resort in serious circumstances. The laws used to extradite individuals should relate to their offences rather than serving a means to put them on trial in that country. If we constantly extradited British citizens for breaching laws of other states we probably wouldn’t be left with much of a population. Perhaps due to increased globalisation and internet piracy, a strengthening of intellectual property law is needed across borders. However extradition measures created for terrorism offences have no application in such circumstances.

A petition has been set up to campaign for a fair trial for Richard O’Dwyer in the UK.